January 14, 2011


By Cyrus D. Mehta

When I first glanced at he Birthright Citizenship Act of 2011, H.R. 140, introduced by Representative Stephen King (R-IA) on January 5, 2011, http://www.opencongress.org/bill/112-h140/show, I figured that it was not worth my time to even write about it. I read it once more, and it dawned upon me that I could have some fun commenting on it and highlighting its absurdity.

The granting of automatic citizenship to a child born in the US is rooted in the first sentence of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” A list of resources can be found on Bender’s Immigration Bulletin at http://bit.ly/f5pX7U. And here is a good policy policy piece from AILA, http://www.aila.org/content/default.aspx?docid=34106 and a great blog with more resources, http://ijjblog.org/blog-mt/dan/2010/11/birthright_citizenship_under_t_1.html.

Nobody is attempting the extremely arduous task to amend the hallowed Fourteenth Amendment, although opponents of birthright citizenship are proposing a reinterpretation of the phrase “subject to the jurisdiction thereof” by denying the children of illegal immigrants and temporary residents from claiming US citizenship. Well over a century ago in United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court held in no uncertain terms:

The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owning direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciles here, is within the allegiance and the protection, and consequently subject to the jurisdiction of the United States.

H.R. 140 seeks to amend section 301 of the Immigration and Nationality Act, which replicates the 14th amendment, by not just depriving the children of illegal immigrants from automatically becoming citizens, but by narrowly limiting birthright citizenship to a person born in the US to parents, one of whom is –

1) a citizen or national of the United States;
2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or
3) an alien performing active service in the armed forces (as defined in section 101 of title 10, United States Code).

This bill, if enacted into law, would even deprive the child of a nonimmigrant parent from automatically becoming a US citizen who is lawfully in the US in H-1B status, and approved for permanent residence but for the fact that she is stuck in the employment-based preference backlogs for many years. What would be the status of such a child? H.R. 140 is silent. Would this poor child be rendered deportable the minute it is born by virtue of being an alien present in the US without being admitted or paroled under INA section 212(a)(6)(A)(i)? Or would the child be given a dependent H-4 status? What if the parents of the child have two different statuses – one on an H-1B visa and the other on a B-1 business visa? Will the child get the more solid H-4 status or the more transient B-2 status as a visitor for pleasure?

It is true that a diplomat, in accordance with Wong Kim Ark, is not subject to the jurisdiction of the US as a diplomat enjoys immunity from US law, but a child of such a diplomat born in the US is at least deemed to be a permanent resident. See Matter of Huang, Interim Decision #1472 (BIA May 27, 1965). On the other hand, it is not so apparent that conferring some kind of legal status short of citizenship is the intent of H.R. 140, which seeks to keep children in the same illegal status as their parents if born in the US.

The only historic exceptions to those subject to the jurisdiction of the US are diplomats and enemies during the hostile occupation of a part of US territory. Congress even passed legislation to ensure that children of all Native Americans are US citizens. See INA section 301(b). An illegal immigrant is undoubtedly subject to the jurisdiction of the US. If he commits a crime, he will surely be prosecuted. He can sue and be sued in US courts, and Uncle Sam gleefully collects his taxes and his contributions to social security (even if he is unable to claim it later on). You cannot liken an immigrant who has entered the US without inspection with the objective of finding work to a member of a hostile force occupying a part of the US. When a hostile force occupies any part of the US, the laws of the US are no longer applicable in the occupied territory. Even a terrorist who enters the US in a nonimmigrant status, such as on an F-1 student visa with an ulterior motive to commit an act of terrorism, unlike a member of a hostile occupying force, is subject to the jurisdiction of the US as she can be convicted or treated as an enemy noncombatant, and if she gives birth to child here, the child ought to be a US citizen under the Fourteenth Amendment.

Moreover, often times being legal or illegal is part of the same continuum. A thoroughly undocumented person, when placed in removal proceedings, can seek cancellation of removal under stringent criteria and become a permanent resident. Such a person whose visa has long since expired could get wrapped up in a romantic encounter with a US citizen, marry, and dramatically convert from illegal to permanent resident within a few months. At times, Congress bestows such permanent residency through section 245(i) or the LIFE Act, or a person can obtain Temporary Protected Status if a calamity were to befall her country. The following extract from the Supreme Court’s decision in Plyler v. Doe, 457 US 202 (1982), which held that undocumented children could not be deprived of a public education:

To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in the country, or even become a citizen.

Under H.R. 140, one who is so unlucky to have been born a day before his parent adjusted to permanent resident status would be in some kind of immigration purgatory. The Birthright Citizenship Act of 2011, along with similar proposals from states to issue two types of birth certificates, is not just unconstitutional but is also shockingly absurd!


  1. I must admit I am not the most educated person on this planet, but it appears the writter of this BLOG in not very bright either.

    But OK. Let me try to figure this out one more time. It is against the law to enter this Country ILLEGALLY. Correct? OK. However, if you do come into this country ILLEGALLY and have a child, we will reward that child with a U.S. birth certificate and make him or her a citizen of the United States, pay for the birth and get the child on welfare so the mother can get money to stay in this country...and that's not ALL! We will school that child and the child will get food stamps, the child will get FREE school lunches, and that's not ALL! The mother and the child can have FREE healthcare and get into public housing, and that's not ALL! The more children you have, the more money you will get. But keep in mind, it is against the law to enter this country ILLEGALLY! Do I have that right? OK. How do you feel about Birth Tourism?


    The way I see it, Illegal immigration is a cancer, it has to be eradicated not tolerated.

  2. Read "Defining American," by James Ho, who is a conservative constitutional scholar, http://www.gibsondunn.com/publications/Documents/Ho-DefiningAmerican.pdf, and he is probably brighter than both of us!

    You also assume that every child born in the US of a parent who is undocumented will be on welfare. These children can also become entrepreneurs, scientists, judges, Congress persons and perhaps Presidents in the long run. The concept of jus soli is ingrained in our law and Constitution, and it guarantees that every child born in the US will be a citizen and given the same opportunity (and not be relegated into a permanent underclass), no matter who his or her parents are or where they came from. H.R. 140 will also prevent children of parents who are legally here on long term nonimmigrant visas (and on the pathway to permanent residence) from becoming citizens.

    It is because we have kept jus soli intact is perhaps the reason why America has been so great and dynamic since its founding.

  3. Reply:

    "These children can also become entrepreneurs, scientists, judges, Congress persons and perhaps Presidents in the long run".

    This is WONDERFUL! Let them do it in their own Country! I stand by my comment! Illegal aliens have NO RIGHT to be in this Country. When we get rid of all the illegal aliens, we will get rid of all the problems that go with them. THAT IS A FACT!


  4. Mr. Mehta: In the version of the post I have read today (Jan 16, 2011), I think there is a typo as you have referenced a case and indicated it was a century ago, then you have said it was published in 1998. I realize that technically we are in the 21st Century and 1998 was in the 20th Century, but I don't think that is normally the way people use the phrase "over a century ago".

  5. It is 1898, and has been corrected. Thanks for the catch.

  6. A few of things:

    My guess is that those who come to this country on "Birth tourism" as Delaware Bob sees it are probably not the type to have low socioeconomic status as Bob would suggest.

    Secondly, I would honestly be surprised if this legislation even stood a chance of passing either House.

  7. I will take you seriously, Delaware Bob, when you put your money where your mouth is and refrain from enjoying the benefits of our broken immigration system. Start tomorrow with a diet of only water, rice, corn, wheat and sorghum. No meat, milk, fruit or vegetables for you because you wouldn't want to be supporting illegal immigration.

  8. What a bunch of liberal IDIOTS on this site! Birthright citizenship will end, you can be sure. My great grand parents came to this Country LEGALLY! This Country allows a million or more to come to our Country LEGALLY every year, yet 12-20 million snub their nose at our laws and demonstrate on our soil DEMANDING amnesty. Well I am DEMANDING, yes, DEMANDING that our immigration laws be ENFORCE and get the illegal aliens out of this country to which they DO NOT belong! If they want to come to this country, go back and wait in line like everyone else. What's so hard about that?

  9. I agree with Bob, if you are in the country illegally, then you are a terrorist. You are murdering the economy by accepting benefits that you didn't contribute too. We are in enough debt already and to pay for some kids and their parents to live in a system for 18 years is too long to wait for pay back.

    The jobs are scarce now and if you feel so strongly give them your status and you go to their country. You Americans here that can't get jobs and going homeless. I don't care if the job is 10 dollars an hour let a homeless American have that job so they can get back in the system.

    I burns my rubber to see illegals working on roofs while a veteran is standing in the soup kitchen line waiting for food.

  10. Reading Delaware Bob's comments I've been going back and forth between amusement and annoyance.

    His tendency to capitalize certain words, like ILLEGALLY, is funny and pathetic, a kind of tic that for some reason is often adopted by the barely literate anti-immigrant crowd. I suppose they fear that the rest of us are afflicted with a kind of political deafness and will miss these words unless they are shouted. It reminds me of the stupid people who speak slowly and shout at non-English speakers hoping to make them understand.

    But Delaware Bob also annoys me because he's so IGNORANT and SELF RIGHTEOUS. How does he know that his great grandparents came here legally. A lot of immigrants in that time DIDN'T. And besides, what's the relevance of that to the question of whether a person born here should be a U.S. citizen regardless of the status of his parents or grandparents.

    Delaware Bob got his citizenship by an accident of birth. He didn't earn it or have to show his family tree to qualify. Nobody asked what crimes his parents may have committed. That's America, and it's part of what makes us a great nation. If we're going to begin making exceptions, I suggest we start with the BIGOTS.

  11. This blog is about the the constitutionality of a proposal, HR 140, regardless of how you view illegal immigration. Whatever your views may be about illegal immigration, the repeal of birthright citizenship for children of parents who are neither citizens nor permanent residents will not solve the problem of illegal immigration. It will exacerbate it. Children of even US citizens will have to establish that they are citizens.

    Illegal immigration can be resolved if Congress fixes a broken immigration system independent of tinkering with birthright citizenship, which is rooted in our Constitution. Congress must create more avenues for legal immigration (right now there are not many legal channels for those who wish to come to the US), regularizes the status of those who are already here and have paid taxes, and after this has been achieved, it will be easier for the government to enforce an immigration law, which will be more rational and sensible.

  12. Cyrus Mehta , you are a good lawyer, but a foolish one. You should not encourage people who are here illegally to stay here or break the law. The US is a nation of laws and they have to be followed. Do you think your former nation ( India)would allow such baltant disregard for their immigration laws. Even these latin american countries will not tolerate such disprecpect for their laws. So why should the US be the only exception to tolerate such bad behavior. So remember the US became a great nation by only following laws and by people who want to learn English and assimilate. Nowadays, immigrants do not want to be american, but want to have all the benefits without bothering to americanize. So you need to encourage immigrants to do that and not break laws.

  13. As an Immigration attorney, I share Mr. Mehta statement. It is about the constitutionality of a proposal, HR 140, regardless of how you view illegal immigration.

    To Anonymous and Delaware Bob.. I agree with you guys, you are not the most educated person commenting on this blog.

    t would be nice if this law was passed retroactive to the day Colonists arrived"illegally" in the U.S. Everybody in this country will be considered "undocumented" but Native Americans. That would be a great idea for a movie. Just saying;)

  14. In response to prior Anonymous's comment, I wrote this blog in support of the Constitution, the 14th Amendment and the rule of law, and not to encourge people to "break the law". On MLK Day it is especially important to support the 14th Amendment, which was put in place to ensure that the children of African Americans would never be deprived of citizenship.

    Moreover, a wise lawyer advocates for fair and rational reform of the immigration system so that there will be more realistic avenues for legal immigration and less for illegal immigration.

    PS. I will review and post comments at my convenience. Blogging is not my day job.

    PPS. I also encourage folks to stay away from personal attacks and engage in civilized discourse about the constitutionality of H.R. 140 and other similar measures.

  15. I understand that you want to follow the rule of law. I have seen you and other lawyers support the DREAM act and other legislations which are in favor of illegals. First what lawyers need to do is to fight for the people who do things the legal way and not support or in any way encourage people to break the law by supporting legistaltions that give them hopes that they can break laws and obtain a pardon. I was not personally attacking you, but the whole absurd bleeding heart policies supported by lawyers everywhere just to show false compassion in order to stay in business

  16. ""t would be nice if this law was passed retroactive to the day Colonists arrived "illegally" in the U.S. Everybody in this country will be considered "undocumented" but Native Americans.""

    I love this argument. It has come up a few times in this thread. Why don’t we start by pointing out some differences between the early colonization of America and now. Early colonist did not migrate to the US for social services (free healthcare, free education, government handouts). Why? Because they didn’t exist back then. Early colonist came to the US because there was an abundance of land, and in some cases, the US government was even offering that land up for free, if people would come and manage it.

    Today’s (and yes I’ll capitalize it just for you guys) ILLEGAL immigrants are not coming to the US for land. They are coming here because unlike in their own countries, the US will not let anyone die in the streets. The US will not let children go hungry, or without education. It is our country’s policy to take care of our own. Unfortunately, that policy is archaic, and our “own” has now morphed into “anybody”.

    The Unites States is a large great county. For a long time, we looked the other way in terms of illegal immigration debacle because, well we thought we were so large, and great, that we could shoulder that burden, and it would not affect us. Now we have learned we are not really that large and great. That some problems are too big, even for us.

  17. Immigration on a whole is very beneficial to Canada and its residents. History tells repeatedly that it is human kind that loses its previleges. Immigration is good for Canada and its people in any way you consider but the undeue advantage taken by a few people in the name of refugee act bestowed by Canadian government is being highly misused. We have to wait and see how far Canada can allow people in the name of refugees. Of course, humanitarian concerns are to be given the highest priority for human kind’s development and survival but misuse of a syustm is highly deplorable. Let us all pray that the gates of immigration be not closed for all those good people and eligible aspirants just because of the refugees who infiltrate this country and can be a bigger and unsolvable problem. As of now Canada is large in heart and resources.

  18. Why are we attacking innocent children and forcing them to pay the life consequences of living as non-citizens if this bill is passed?
    Who will we attacking next?
    What other group of people will be denied citizenships and the rights of citizens?
    What happened to the concept of defending and aiding the poor and helpless?

  19. I agree with the bill. To come to this country illegally and have a baby and be put on welfare/foodstamps/tanf everything is outrages. Stay in your own country and become a legal citizen just like everyone else. no disrespect to anyone but my uncle is an illegal immigrant and yet i still have my beliefs.